Lack of ‘Potty parity’ can spark discrimination claim

It may sound trivial, but employers in male-dominated industries should take note: Make sure your female employees have access to equal restroom facilities that meet women’s needs. Don’t expect women to adopt male restroom habits.

Also, don’t provide them with dirty and potentially dangerous facilities. Instead, as a series of recent cases show, it’s important to aim for “potty parity.”

Case No. 1: Cassandra Johnson was one of the few women working as crane operators at a construction site. When Johnson asked when she could take bathroom breaks, the answer shocked her: never. Supervisors allegedly told her to do what the men did—lean out and urinate over the side of the crane.

She refused, reasoning that her anatomy didn’t make that feasible. She quit and sued for sex discrimination.

The court sent the case to trial, saying any rule that has a disparate impact on females could be the basis for a Title VII discrimination case. In this case, the company’s off-the-crane solution was unequal “given the obvious anatomical and biological differences between men and women and the unique hygienic needs of women, including those during menstrual cycles.” (Johnson v. AK Steel, No. 1:07-CV-291, SD OH, 2008)

Case No. 2: A court ruled that dirty bathrooms were more dangerous for females, and failing to provide sanitary bathrooms was tantamount to placing females at a higher risk for infections (which created a possible cause of action for a sex discrimination case).

Case No. 3: A factory had one restroom, which was designed for men. Women could use it during work hours, or they could wait until breaks and use a restroom for women in a nearby building. The factory fired a female employee for using the farther-away restroom during work hours. She successfully sued for sex discrimination.

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